By Dr. Ken Broda-Bahm:
Regular readers know this blog frequently focuses on the principle that social science matters in litigation. Knowing about public opinion and psychology helps the persuader understand and adapt to the audience. But, going further than that, social science also frequently finds its way into the court’s decisions, particularly when a court steps beyond the law’s formalism to more broadly consider the social implications and truths underlying the controversies before it. At the U.S. Supreme Court level, social science-driven amicus curiae briefs have played important roles in landmark cases like Brown v. Board of Education of Topeka on the effects of segregated schooling, helping the judges determine at that time that "separate" was not, in fact, "equal." In cases like that, the Supreme Court’s reliance on social science is often justified based on the Court’s quasi-legislative role in making national policy. But the relevance of social science applies at the trial court as well, where there are factual questions that bear chiefly on the case at hand.
One example of such a question that a trial court needs to answer is whether pretrial publicity is going to deprive a given litigant of the right to a fair trial in a particular venue. A recent article in The Jury Expert (Daftary-Kapur, Penrod, O'Connor, 2014), builds a case for taking the social science on that question more seriously. By comparing a laboratory simulation on the biasing effects of publicity to a more realistic ‘shadow jury’ investigation on the same case, the authors are able to argue that the different methods point to the same conclusion: Pretrial publicity introduces a persistent bias that influences the result. In a response published along with the article, I note a few areas where the presentation of these research results should be adapted in order to address court’s reluctance to rely on this kind of data. The exchange provides a reminder to litigators seeking to use social science to buttress motions to the court: Instead of treating these citations as matters of fact, treat them as arguments. While they obviously need to be factually true as well, what matters as much, or more, is that the explanation should strategically address the court’s likely objections or natural reluctance to use social science. This post considers the issue and provides a few reminders on framing your social science for the bench.